The Naming of the Shrew
by Willard Thompson

(Article reprinted with permission)

     Descending the Grapevine on California's Interstate 5, after negotiating the curves of the Tehachapi Mountains, the San Joaquin Valley opens up below you like an earth mother flinging wide her arms to welcome you to one of the most fecund farming areas in the nation. Depending on the season, the vista stretching out before you can be a tapestry of green vineyards, orchards and fields, or fog shrouded cotton bales, standing along farm roads like an army of ancient clay soldiers. You've arrived in Kern County - cotton and cattle and carrot country. John Deere country to be sure.
     The Kern County Agricultural Commissioner says the value of products harvested from almost 900,000 acres is $2.25 billion. Forty-three different crops share the valley floor with dairies and oil derricks; cattle and sheep graze the lower slopes that embrace the Valley's south end.
     The valley wasn't always a cornucopia of food and fiber. It took back-breaking toil by men and women at the turn of the 20th Century to drain off the lakes and marshes to make the land suitable for crops, and it took the money and muscle of federal and state governments in the middle years of the century to dam and divert the rivers of the Sierra Nevada Mountains and pour the concrete canals that bring irrigation water to thirsty fields.
     Kern County is also the Jurassic Park of federally listed endangered species. There are more Endangered Species calling Kern County home than any other county in the continental US. And the latest addition to the list, forced on US Fish & Wildlife Service as part of a settlement with environmental groups, is the Buena Vista Lake shrew. No bigger than a heartbeat, weighing less then a quarter, BVLS, as it's called by everyone, lives in riparian habitat nearby to waterways, eating insects and grubs it finds in the leaf litter under willows and other shrubs. The listing of BVLS calls into question what the phrase "the best available science" really means in the Endangered Species Act (ESA).
     In the case of the BVLS timing is everything. On June 1, 2000 FWS published a proposed listing in the Federal Register. The Final Rule was published on March 6, 2002. In between those dates two new scientific studies were published: one said the BVLS was not endangered and the other said it might not even be a distinct subspecies. That information, and the way the FWS failed to heed it in the Final Rule, led the Kern County Farm Bureau, The County of Kern, five water districts in the county and the Coalition for Private Property Rights to file suit in US District Court seeking to have it overturned.
     "It is pretty clear to us that this is a listing that is not legal or justified based on the best available current information and the requirements of the Endangered Species Act," Says Robert Kunde, the long time chair of the Kern County Farm Bureau's Endangered Species Committee. Kunde, a no-nonsense type who is also Assistant Engineer-Manager of the Wheeler Ridge-Maricopa Water Storage District, bends over backwards trying to be fair to FWS. Nevertheless his frustration comes though often (see sidebar). "The ESA discourages land managers from doing good things rather than encouraging them. There is no accountability in the act other than litigation," he adds.
     In its listing FWS cited research done in 1932 on the morphology of the Buena Vista Lake shrew (Sorex ornatus relictus), claiming it was one of nine distinct subspecies of ornate shrew (Sorex ornatus ornatus). Back then the distinctions were based on the color of its coat and three other measurements - slightly larger body, shorter tail and head shape. But after the public comment period closed in October 2000, a new study, by Jesus Maldonado and researchers at UCLA said it was not a distinct subspecies. Robert D. Thornton, the attorney at Nossaman, Gunther, Knox & Elliott, LLP, the law firm handling the case, thinks FWS played a bit loose with that study. The FWS's Final Rule states, "…Maldonado concluded that populations of ornate shrews throughout their range showed low levels of morphological divergence. In addition, variation in these skull measurements due to age or sex was shown not to be significant," but later on the rule contradicts itself, stating, "Based on the most current scientific information, we have concluded the Buena Vista Lake shrew represents a valid subspecies."
     If BVLS is not distinguishable from other ornate shrews, as the scientists indicate, the next question is 'is it endangered?' Again, scientific understanding changed from proposed to Final Rule. At the time FWS issued its proposed rule it believed the shrew existed in just one location. Not so says a study written for the U.S. Bureau of Reclamation and published after the comment period ended - this one by Dr. Daniel F. Williams and others at the Endangered Species Recovery Program at California State University, Stanislaus. In it, the researchers identified a number of locations where BVLS were trapped and indicated several other probable habitats. In the report, Dr. Williams writes, "Our investigations demonstrate that Buena Vista Lake shrews are somewhat more widespread than previously documented, and their persistence is not nearly as jeopardized as we formerly believed." Stating it more forcefully, he goes on "…we do not believe that Buena Vista Lake shrew are endangered now, nor are there foreseeable threats to remaining populations in the near future." And on the subject of whether BVLS is a unique subspecies he throws in "…the taxonomic identity of ornatus-group shrews must be considered unsettled," not, as FWS says, "a valid subspecies."
     The discrepancy, however, was not enough to unsettle FWS. It issued its Final Rule and was sued by the Kern County Farm Bureau (KCFB) and water districts a month later. In an interview with the California Farm Bureau newspaper, AgAlert, FWS spokeswoman Patricia Foulk commented, "The agency is disappointed that they (KCFB) went forward with this suit - we hoped to be able to work with the ag community to recover this species." That comment was enough to unsettle the usually placid Robert Kunde. "That's a lie," he says passionately. "In 10 years of working with FWS I have never had a phone call returned. They have never approached the Farm Bureau, which is the primary representative of agricultural interests in the county, to work on the shrew, so it is flat out disingenuous."
     Contacted by Range, Ms. Foulk now says, "We were disappointed about the suit for the simple matter that they (KCFB) were ready to file before we even finished the public process. We felt it would be more useful to provide comments to us that might show us that there was sufficient of these critters out there to avoid the listing." She adds, "There is some information out there that some scientists may have put forward that it wasn't a distinct species."
     You have now entered the Twilight Zone that shows how completely disconnected FWS and the farming community are: FWS says BVLS would have been better served if KCFB had provided more information to show there were a sufficient number of critters to avoid the listing, while the Farm Bureau says if FWS had paid attention to the best available science BVLS would never have been listed. Attorney Thornton says, "In the proposed rule FWS claimed that the BVLS existed in just one location and in the Final Rule they've admitted it exists in a number of other locations. We think that that's significant new information that FWS was required by the ESA and by the Administrative Procedure Act to reopen the comment period because the rationale for the listing changed dramatically."
     Eager to put that case before a judge, the required 60-day written notice of intent to sue the federal government was sent on January 25, 2002 to Interior Secretary Gail A. Norton and then-Acting Director of FWS Marshall P. Jones, Jr., ahead of the posting of the Final Rule in the Federal Register. Last October, the US District Court in California dismissed some of the claims in that suit without prejudice because the "Intent to File" notice preceded the Final Rule. Thornton says there was no precedent for that decision. A second 60-day letter of intent has been sent with an expected court date this spring and Thornton is optimistic about the final outcome. "My outlook on the case continues to be very positive because we think the underlying science that FWS is citing doesn't support the listing. This case is fundamentally about what is the requirement that available scientific data meet."
     Meanwhile, FWS has yet to designate critical habitat for BVLS and Ms. Foulk indicates it isn't likely to do so quickly. That means a level of uncertainty exists at Robert Kunde's water district and other districts in the County about how they will be able to maintain their facilities. It also raises questions about flood control procedures on the Kern River and mosquito abatement practices that might keep Kern County residents safe from insect-borne diseases. As Robert Kunde summarized the situation, "The public is somewhat removed from the issues of farmers farming and getting irrigation water to their land - that all looks like a remote activity. But disease control and flood control on the Kern River through Bakersfield could have very significant impacts on the public."

Willard Thompson writes a weekly E-mail newsletter on western agriculture. You can email him at willard@rinconpublishing.com or call 800-678-GROW.